John Howard gave us the History Wars in the 1990s and early 2000s; now, in his recent speech to the Institute of Public Affairs, Tony Abbott promises us the Freedom Wars.
The speech included a commitment to amend the vilification provisions of the Racial Discrimination Act 1975 (RDA).
These are the provisions that Andrew Bolt was last year found to have contravened in his columns naming several high-profile Aboriginal Australians and implying, in Justice Bromberg’s words, that they were "not sufficiently Aboriginal to be genuinely identifying as Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to identify as Aboriginal".
It is worth setting out the relevant sections in some detail. Section 18C provides that it is:
"…unlawful for a person to do an act, otherwise than in private, if … the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and … the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group."
Abbott’s speech focused on the concept of offence, arguing that "a ‘hurt feelings’ test is impossible to comply with while maintaining the fearless pursuit of truth which should be the hallmark of a society such as ours".
This characterisation of the RDA obscures the nature of its application — as Helen Pringle pointed out in the Drum, "not a single one of the myriad cases that concern Section 18C … have made hurt feelings the test of unlawfulness". A list of some relevant cases can be found on the Australian Human Rights Commission’s website.
Moreover, Abbott’s reference to "the fearless pursuit of truth" is somewhat curious, given that the RDA contains exemptions designed to protect that very quest.
Section 18D provides that the RDA does not render unlawful anything said or done reasonably in good faith in a fair and accurate report of any event or matter of public interest or a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
It also states that the RDA does not render unlawful anything said or done reasonably and in good faith in an artistic work; in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest.
Justice Bromberg found that Bolt’s columns were not covered by these exemptions due to their "erroneous facts, distortions of the truth and inflammatory and provocative language".
Abbott’s concession that "[t]here may have been some factual errors" in Bolt’s columns was as close as his speech got to acknowledging this finding.
Of course, some consider that the exemptions in s18D are still inadequate to protect free speech, while others differ. Reasonable people of good will can disagree on the racial vilification provisions.
Divisions of opinion on this issue transcend the blunt left/right distinctions so beloved of the mainstream media and there is room for nuance.
David Marr for instance concurs that section 18C "needs to be amended" but maintains that while language which merely "offends" should not be included, language that intimidates on the basis of race ought to be unlawful. He considers, further, that Bolt’s columns would not "be saved by Abbott’s law … [they]didn’t just offend. The judge found that [they]failed on all four grounds … offended, insulted, humiliated and intimidated".
The racial vilification provisions have assumed something of a talismanic status since the Bolt case, which has unfortunately enabled Australian conservatives to adopt a heroic, freedom-fighting pose — almost as though they were covertly circulating samizdat papers beneath the glare of an oppressive regime rather than peacefully writing in national newspapers.
As Jonathan Green writes, "for Andrew Bolt to complain of curbs to his right to free speech is a fairly self-evident absurdity, given the cross-platform media acreage at his disposal in any given week".
There has also not been an equivalent focus on defamation laws (of which Abbott availed himself in a 1999 action against the publishers of Bob Ellis’s book Goodbye Jerusalem) or other areas that restrict freedom of speech.
Neither is it often noted that some Australian jurisdictions make vilification on several grounds unlawful. For instance, the New South Wales Anti-Discrimination Act 1977 includes provisions relating to vilification on the grounds of homosexuality, HIV or AIDS status, or transgender status as well as race, and the Tasmanian Anti-Discrimination Act 1998 provides that a person must not publicly "incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons" on the grounds of race, disability, sexual orientation, lawful sexual activity or religious belief, affiliation or activity.
It seems doubtful, somehow, that a finding that a columnist had contravened disability vilification provisions would attract the level of interest and passion as has Eatock v Bolt.
Free speech is always complex, but arguments about the Bolt case are complicated and messy precisely because the case relates directly to racism against Aboriginal and Torres Strait Islander people — something non-Indigenous Australians often find it awkward or uncomfortable to talk about.
The "Aboriginal memes" Facebook page, although it has now been removed, is yet another reminder of the hostility and contempt with which some view Indigenous Australians.
The ongoing existence of such attitudes is difficult for conservatives, in particular, to acknowledge. Recall Abbott’s statements about the Tent Embassy on Australia Day:
"I can understand why the Tent Embassy was established all those years ago. I think a lot has changed for the better since then…We had the historic apology just a few years ago…We had the proposal which is currently for national consideration to recognise Indigenous people in the Constitution. I think the Indigenous people of Australia can be very proud of the respect in which they are held by every Australian…I think a lot has changed since then and I think it probably is time to move on from that.”
It was rather disingenuous for Abbott to use the 2008 apology to the Stolen Generations as evidence of this "respect", given that several members of his own party boycotted this "historic" event.
Further, as Michael Brull argued, Abbott’s words reflected "a surprising amount of ignorance" about Indigenous peoples’ legitimate grievances.
Brull suggested sarcastically that such a "patronising dismissal would presumably get some kind of analysis, if it were directed at people who matter … Abbott’s condescending words were only targeted at Indigenous Australians, so there’s no need to try to understand why anyone would feel angry at him".
Similarly, whatever one’s views on vilification laws, it is not hard to see why, given a long and ongoing history of dispossession and disadvantage, Aboriginal people might object to effectively being categorised as either "authentic" or ersatz by non-Indigenous commentators — or why dismissing these objections as mere "hurt feelings" misses the broader point.
Abbott was correct in noting that much has changed in Australia since the early 1970s. However, the debates around the Bolt case demonstrate how far we have to go.
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